Vol. 18 No. 11 (November, 2008) pp.1034-1038
THE BILL OF RIGHTS TODAY: CONSTITUTIONAL LIMITS ON THE POWERS OF GOVERNMENT, by Joseph Dillon Davey. Lanham, MD: University Press of America, 2008. 300pp. Paper $38.00/£26.00/€40.95. ISBN: 9780761840756.
Reviewed by Jeremy A. Janow, Department of Government & Politics, University of Maryland. Email: jjanow [at] gvpt.umd.edu.
Joseph Dillon Davey’s introduction to the current state of rights in the United States is intended for an undergraduate audience, and it is from the viewpoint of a prospective teacher that it is rightfully assessed. The preface states that the text was written for courses in political science, law, criminal justice, as well as those in political philosophy or the philosophy of law, and it contains reference to and discussion of a wide range of topics that are relevant to those areas of study. The goal of the book is to “examine the theories of law and government that under gird the most important cases the High Court has heard in the past half century” (p.xv). As implied by the title, the cases here are limited to those dealing with individual rights and not the structure of government, certainly another important means of constraining power and protecting rights. As is almost de rigueur for an introductory work on rights in the United States, Davey largely assumes the necessity of a written bill of rights, and looks to how the individual rights amendments to the Constitution have been protected in practice, as seen through key cases that have come before the Supreme Court. The cases highlighted in the book are relatively recent, as would be expected given the rise in rights jurisprudence in the second half of the twentieth century forward and the book’s focus on current practice. Little reference is made, however, to the relative paucity of rights talk and jurisprudence in the early history of the United States, leaving the impression of a nearly seamless theoretical and legal progression from the Bill of Rights to its contemporary instantiation in case law. This may not be entirely an oversight, as Davey’s primary focus is to emphasize the changing conception of individual rights from a highpoint largely set by the Warren Court to regressive interpretations by the Rehnquist and Roberts Courts, and to confirm the view of the Supreme Court as the proper locus of rights protection in America.
THE BILL OF RIGHTS TODAY is divided into four parts, each with a very short introduction that references a broad range of notable political thinkers to situate the topic in a philosophical context, followed by chapters that detail specific areas of rights protection and conclude with excerpts from relevant cases. Part One sets up the book much in the way that the introductions set up each part, with a theoretical discussion of the idea of human rights and its historical development. Davey points to Plato’s REPUBLIC as the seedbed for what would later become the theory of human rights and then moves on in the first chapter to discuss briefly the important philosophical antecedents that culminated with the creation of the Bill of Rights, including Cicero, Locke, Rousseau, Paine, and Blackstone. The [*1035] philosophical sections here, and throughout the book, tend towards sweeping generalizations rather than careful analysis. For example, Davey writes that Aristotle “actually believed the ‘Royal Lie’” described in Plato’s REPUBLIC, but only takes a further two paragraphs to justify such a claim (p.5). For classes that take political philosophy seriously this will be an inadequate treatment of the subject, and likely more confusing to students than explanatory. While spurring interest in the connection between the history of political thought and the jurisprudence of the Supreme Court is surely laudable, any professor would need to add significantly to the philosophical discussions to give students more than a theoretical sound bite. Done right, this would make the philosophy in the book largely unnecessary or possibly counterproductive. Alternatively, for classes less philosophically inclined, such references may be an unnecessary diversion from the analysis of individual rights today in their legal context. Additionally, readers may be surprised that there is more discussion of the Ancient Greeks than of the debates by the founders on whether to have a bill of rights at all.
Chapter Two takes up the role of the courts and the critique that judicial review is counter-majoritarian and undemocratic. Davey discusses Robert Bork and Alexander Bickel as staking out the primary arguments against and for judicial review, and highlights BROWN v. BOARD OF EDUCATION (1954) as the exemplar of judicial prevention of majority tyranny. While Davey argues the commonly held view that elected legislatures could not have achieved similar goals as the Supreme Court in those circumstances, he fails to mention recent scholarship that challenges the Court’s effectiveness in achieving social change, such as Gerald Rosenberg’s HOLLOW HOPE thesis or Michael Klarman’s study of the political backlash against the civil rights movement that Brown helped spur. Additionally, while Davey notes that there likely is some politics behind the Court’s decisions, there is no discussion of the political foundations of judicial review and judicial supremacy, or that the increased judicialization of politics in the United States is part of a global trend. The chapter moves on to brief treatments of strict construction and originalism, followed by a consideration of the justices’ varying positions on authority. The basis for the divergence in opinions of the justices, Davey concludes, is their formative experiences as children, and “the best person to question about the dramatically different reasoning of a Hobbesian or Lockean Supreme Court justice would be the Justice’s psychoanalyst” (p.27). Davey’s choices here are critical, as the chapter covers a lot of ground in a casual and unsystematic manner, leaving readers with the confusing notion of the Court as both a bulwark of principle against democratic tyranny and an institution whose decisions hinge on the justices’ psychic intricacies.
Part Two begins the analysis of categories of individual rights and their protection, starting with the right to fundamental fairness, including chapters on due process as well as cruel and unusual punishment. Incorporation is discussed, with particular attention given to the increased protection of criminal suspects by the Warren Court followed by a narrowing of the due process clause [*1036] under subsequent Courts. The chapter concludes by staking out the high water mark of the liberal interpretation of due process with GOSS v. LOPEZ (1975) and points to BENNIS v. MICHIGAN (1996) and LOCKYER v. ANDRADE (2003) as primary examples of the trend towards narrowing it. Chapter Four provides a legal history of the death penalty in the United States, including a discussion of the punishment of juveniles, and excerpted opinions from GREGG v. GEORGIA (1976) and ROPER v. SIMMONS (2005).
The strongest part of the book is the third, which discusses equal justice under the law, including chapters on the rights of minorities, women, and affirmative action. In Chapter Five Davey is engaging as he describes the unequal treatment of African Americans as seen in PLESSY v. FERGUSON (1896), and the transformation of constitutional law made through landmark cases such as BROWN and LOVING v. VIRGINIA (1967). He discusses the difference between de jure and de facto discrimination, and here briefly acknowledges that BROWN has not led to widespread integration in education in practice. The chapter on the rights of women provides the venue for a valuable discussion of the development of the levels of judicial scrutiny, as well as of cases specific to the protection of women’s rights, in particular UNITED STATES v. VIRGINIA MILITARY INSTITUTE (1996). The chapter on affirmative action offers brief but useful discussions of the case law surrounding both employment and educational affirmative action, followed by case excerpts including MCCLESKY v. KEMP (1987) and GRUTTER v. BOLLINGER (2003).
The final substantive part treats basic rights of a free society such as the freedom of expression, the separation of government from religion, and rights of privacy. The protection of speech is quickly but broadly covered in Chapter Eight, including discussions of obscenity and hate speech, and offers contextual details for DENNIS v. UNITED STATES (1951), and BRANDENBURG v. OHIO (1969), as well as excerpts from TEXAS v. JOHNSON (1989), and WISCONSIN v. MITCHELL (1993). Curiously for a book on individual rights, Chapter Nine focuses its discussion on the establishment clause of the first amendment and on cases regarding school prayer, rather than on a treatment, or even mention, of the free exercise clause and related cases. Davey’s decision here may be that students relate more directly to religion in the context of education, but some additional work will be necessary for an instructor concerned with both religion clauses. The history and explanation of the establishment clause is fairly detailed, however, and includes the development and application of the LEMON test to subsequent cases.
Chapter Ten takes up what Davey terms the ‘right to be left alone by government,’ which contains an analysis of and extensive quotation from ROE v. WADE (1973) and touches upon other important privacy cases such as GRISWOLD v. CONNECTICUT (1965), and LAWRENCE v. TEXAS (2003). Interestingly the chapter ends with an excerpt from KELO v. CITY OF NEW LONDON (2005), but does not provide any further discussion of the case or any stated connection to the chapter as a whole. Chapter Eleven continues the treatment of privacy rights [*1037] in relation to searches and seizures. Here Davey argues from a libertarian perspective, hinting that the Fourth Amendment is on its deathbed and that the United States is moving towards an Orwellian state, with BOARD OF EDUCATION v. EARLS (2002) serving as key evidence. Davey concludes his book with a brief section on the protection of rights in an international context, offering that the discussion of rights in the American case can serve as a guide to a global understanding of what individual rights entail.
This review must conclude with a discussion of the potential place of THE BILL OF RIGHTS TODAY in the syllabus of a course today. On the whole, Davey’s work reads as a series of lectures to an introductory course on American constitutional law, plus excerpts of related Court opinions. Its scope is simultaneously too broad and too narrow, as it tries to place specific decisions in philosophical context but ends up giving neither case law nor theory a sufficiently careful treatment. This may be due in part to the limitations of a book of its size serving as an adequate introduction to the protection of rights in America. However, it is likely also due to the approach the book utilizes, one that eschews close analysis of topics and cases and instead makes use of an informal, conversational style followed by case excerpts, often unanalyzed. While a casual presentation and organization may have the benefit of making introductory material more easily accessible to undergraduates, the philosophical and interpretive laxity undercuts the substance of what might be gained, and does not provide the tools for teachers to put the case law in useful theoretical or political context for students.
The book may provide the groundwork upon which an ambitious teacher might build, who could supplement the brief philosophical and historical information that lead up to the cases as well as providing more in depth analysis of the cases themselves. Davey’s work could then serve as a first pass, with each chapter furnishing the touchstone from which more detailed theoretical and legal material is offered to fill in where it left off. Of course, any teacher willing to put together such additional texts may find the introduction provided here to be unnecessary, and possibly encumbering. Those who wish to teach the narrative of the Court as prime and proper protector of individual rights, with the Warren Court as archetype, will find a like-minded resource in this book. Instructors who question the prevalence of rights talk or who consider the political rather than legal protection of rights as an important topic of study, will find Davey’s treatment lacking. An introductory class is likely the only time most students, with the exception of those headed to law school, will think seriously about the protection of individual rights in the United States. Accordingly, any introductory text to the subject ought to provide the basics of what any citizen should know about rights and their role in protecting them. This book largely leaves readers with the general impression that the protection of rights in America is best left to the Supreme Court. In the end, it simply confirms the view that many students likely hold before taking any introductory class at all. [*1038]
Klarman, Michael J. (2007). BROWN v. BOARD OF EDUCATION AND THE CIVIL RIGHTS MOVEMENT. New York, NY: Oxford University Press.
Plato (1956). THE REPUBLIC. Trans: Francis Cornford, Kurt Hildebrandt, and Eric Voegelin. Oxford and Cambridge: Oxford University Press.
Rosenberg, Gerald N. (2008). HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
BENNIS v. MICHIGAN, 517 U.S. 1163 (1996).
BOARD OF EDUCATION v. EARLS, 536 U.S. 822 (2002).
BRANDENBURG v. OHIO, 395 U.S. 444 (1969).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
DENNIS v. UNITED STATES, 341 U.S. 494 (1951).
GOSS v. LOPEZ, 419 U.S. 565 (1975).
GREGG v. GEORGIA, 428 U.S. 153 (1976).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).
KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LEMON v. KURTZMAN, 403 U.S. 602 (1971).
LOCKYER v. ANDRADE, 538 U.S. 63 (2003).
LOVING v. VIRGINIA, 388 U.S. 1 (1967).
MCCLESKY v. KEMP, 481 U.S. 279 (1987).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
ROE v. WADE, 410 U.S. 113 (1973).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
UNITED STATES v. VIRGINIA MILITARY INSTITUTE, 518 U.S. 515 (1996).
WISCONSIN v. MITCHELL, 508 U.S. 476 (1993).
© Copyright 2008 by the author, Jeremy A. Janow.
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